Jamieson v The Queen [2017] VSCA 140

1 On 5 April 2016, the applicant, Ian Jamieson, pleaded guilty before a judge in the Trial Division to the murders of his neighbours, Gregory Holmes, Peter Lockhart and Mary Lockhart. On 22 July 2016, following a plea hearing conducted on 20 July, he was sentenced as follows:

Other orders: Pursuant to pt 2A of the Sentencing Act 1991, the Court declared the offender be sentenced as a serious violent offender on Charges 2 and 3.

2 Now, the applicant seeks leave to appeal against his conviction on charge 1, that is, the charge relating to Mr Holmes;[1] and, if leave is granted, that his appeal be allowed. He relies upon this ground:

1. The conviction in relation to Charge 1 - murder of Gregory Holmes should be set aside/quashed. The applicant made an Application to change his Plea which was refused. The trial judge erred in refusing the Application insofar as Her Honour:

(a) made findings of fact not open on the evidence;

(b) misapplied the relevant test/law in determining the Application resulting in a miscarriage of justice; and/or

(c) although the trial judge addressed the question of whether the guilty plea was made freely and voluntarily, Her Honour failed to address the question whether the applicant intended by his plea to accept guilt for an offence of which he truly believed himself to be guilty and this was an error which requires the discretionary ruling/judgment to be set aside.

3 In our opinion, for the reasons which follow, the application lacks any merit. It should be refused.

Circumstances of offending generally described

4 For many years, the applicant and his wife lived on a farm on the Wedderburn-Logan Road, outside Wedderburn.

5 From 2006, Peter and Mary Lockhart lived on a farm just along and across the road from the applicant's farm. At the time of their deaths, on 22 October 2014, Peter Lockhart was aged 78 and Mary Lockhart 75. At that time, it is convenient to add, the applicant was aged nearly 64.

6 In early 2014, Gregory Holmes, who was Mary Lockhart's son, moved to a property on Mulga Ridge Road, Wedderburn. We will call it the Holmes farm. It adjoined the applicant's property.

7 One means of access to the Holmes farm was a road reserve which ran alongside a boundary fence of the applicant's property. Over the years, the occupiers of the Holmes farm were licenced to use the road reserve.

8 Mr Lockhart used the road reserve, with the permission of the owners of the Holmes farm, when working on their farm or getting water from one of the dams on that farm. We are speaking of the period prior to Mr Holmes acquiring the property.

9 Use of the road reserve caused a deterioration in what had initially been a cordial relationship between the applicant and Mr Lockhart. The applicant complained that the use of the road reserve resulted in dust blowing onto his farm, this dirtying his house and polluting the drinking water.

10 The relationship between the applicant and Mr Lockhart deteriorated further after Mr Holmes moved in. Mr Lockhart used the road reserve more frequently. The applicant increasingly believed that Mr Lockhart was deliberately provoking him. He alleged that it was not only Mr Lockhart's use of the road reserve, but abusive things that the latter said, which caused the increasing tension.

11 The applicant also became angry towards Mrs Lockhart and Mr Holmes, largely because of their respective relationships with Mr Lockhart.

12 On 22 October 2014, sometime between 7:55pm and 8:14pm, the applicant walked to Mr Holmes' house to confront him. He had with him a hunting knife in a scabbard. Earlier that day, we pause to say, Mr Lockhart had driven along the road reserve.

13 At 8:14pm, Mr Holmes called the Wedderburn Police Station. It was unmanned at the time. He did not leave a message.

14 At 8:15pm, Mr Holmes called 000, requesting the attendance of police to what he described as an emergency. He said that the applicant was on his property and 'annoying the hell' out of him. He said that there had been no threats of violence and no weapons involved. He was told to keep it calm until the police arrived.

15 Police arrived shortly after 8:30pm. In the interim, the applicant had stabbed Mr Holmes many times with the hunting knife. An autopsy revealed that the victim received at least 25 sharp force injuries, including multiple stab injuries to his upper back and neck regions, the back of his head and his chest. Some stab wounds incised the ribs and vertebrae, and punctured the victim's lungs. There was also evidence of blunt force trauma to his head, and defensive-type injuries to his hands.

16 It appears that Mr Holmes did not die immediately. Nearby campers heard cries for help, of diminishing volume, three or four times. The campers arrived to investigate those cries shortly after the arrival of the police.

17 By the time the police arrived, the applicant had left the scene.

18 He returned on foot to his home. He picked up and loaded two shotguns. He then walked to the Lockhart farm. He shot Mr Lockhart when he was on a path at the rear of his home. He fired twice to Mr Lockhart's head and twice to his body - twice from a double barrelled 12 gauge shotgun and twice from a single barrelled 20 gauge shotgun.

19 The applicant then reloaded the 12 gauge shotgun and used it to shoot Mrs Lockhart, firing once to her head and twice to her body. This incident occurred inside the back door of the Lockharts' residence.

20 The sounds of the shotgun blasts were heard by police at 8:38pm. Thereafter, police attended at the Lockhart property and found the bodies of Mr and Mrs Lockhart. Only later did they find Mr Holmes's body.

21 The applicant called 000 at 8:48pm, and asked police to attend. He said he had just killed three people. He said they had 'taken him on' and that they had just 'pushed, pushed, pushed and that's it'. He was arrested by police later that night. He made a number of statements about what had occurred. Their theme was that - (1) he had been pushed and pushed by the victims; (2) he could only take so much; (3) he had gone to confront Mr Holmes; (4) Mr Holmes had taken his knife and attempted to injure him; (5) he had regained possession of the knife; (6) somehow, he could not remember the detail, he had finished up stabbing Mr Holmes; (7) thinking that Mr Holmes was 'finished', he decided to complete the job - which he did by killing Mr and Mrs Lockhart.

22 Having regard to the proposed ground of appeal, we should set out the relevant procedural history.

● 20 July 2015: The matter was first listed in the Supreme Court.

● 20 July 2015 and 3 August 2015: At directions hearings, the applicant indicated that he would plead guilty to charges 2 and 3 (they related to Mr and Mrs Lockhart).

● 17 February 2016: The prosecution filed an opening, which proceeded on the basis that charge 1 (relating to Mr Holmes) would be the only contested charge.

● 20 February 2016: The applicant's then solicitors filed a notice of ceasing to act.

● A few days after 20 February 2016: New solicitors advised that they had received instructions to act and were attempting to obtain VLA funding.

● 1 March 2016: At a mention, the applicant's new solicitors raised the possibility that the applicant might contest all three charges.

● 3 March 2016: The Court was informed that VLA funding had been conditionally approved. The trial date was varied from 30 March to 4 April to permit the applicant's new lawyers additional time to prepare.

● 16 March 2016: At a further mention, the Court was informed that it was still not clear what plea the applicant would enter to charges 2 and 3. It was said that this would depend on the result of a neuropsychological report. It was said that the report would address the possibility of a mental impairment defence - not the question whether the applicant's actions were conscious, voluntary and deliberate.

● 31 March 2016: The defence filed a response which stated that the applicant would only be contesting charge 1, the contest being as to lack of murderous intention and self-defence. No issue of mental impairment or automatism was raised with respect to any of the charges, but reference was apparently made to a new allegation by the applicant - that Mr Holmes had stabbed him with a syringe filled with some noxious substance at the outset of their confrontation.[2]

● Friday, 1 April 2016: Applicant's senior counsel informed the Court that he had received a last minute change of instructions from the applicant, who now wished to plead not guilty to all three charges. Asked what was the basis of any defence to charges 2 and 3, counsel advised that it was 'some kind of automatism defence', but that he was not in a position to elaborate. The applicant was arraigned and pleaded not guilty to all three charges.

● Later on 1 April 2016: The Court was advised that the applicant would be reverting to the position set out in the defence response, pleading guilty to charges 2 and 3.

● Monday, 4 April 2016: The applicant was re-arraigned and pleaded not guilty to charge 1, and guilty to charges 2 and 3.

● Tuesday, 5 April 2016: As the jury panel was about to be brought in, the applicant, through his counsel, asked for time to confer with them. After that had happened, counsel informed the Court that the applicant wished to change his plea on charge 1. He was re-arraigned and pleaded guilty to all three charges. The proceeding was adjourned until 21 April 2016 for a pre-sentence hearing in Bendigo.

● 18 April 2016: The Court was informed that the applicant had terminated the services of his then current lawyers.

● 19 April 2016: At a mention, the applicant represented himself. The judge, in her ruling on the later change of plea application, described his manner on that occasion as being 'rude and disrespectful'; and her Honour said that 'he clearly did not regard it as important to obtain new representation to enable the matter to proceed on 21 April'. The judge intimated that she would proceed to hear at least the prosecution opening and the victim impact statements on 21 April.

● 21 April 2016: The applicant was still unrepresented. The judge heard the prosecution opening, and victim impact statements were received. The matter was then adjourned for mention on 29 April.

● By 29 April 2016: The applicant was represented by new solicitors. On that day, counsel intimated his understanding to the judge that the applicant 'wishes to change his plea'. He could provide no detail.

● 5 May 2016: Counsel informed the Court that the applicant sought leave to change his plea on charge 1 to one of not guilty. Counsel stated that 'some questions and answers ...could lead to the conclusion that there was evidence of self-defence in the case of Mr Holmes'. He added that '...it would be a miscarriage if indeed there is a viable defence and he was not permitted to run it'. The judge set a timetable for the delivery of evidence and submissions relating to the application.

● 20 June and 11 July 2016: The judge heard the application for change of plea on charge 1. Counsel (not counsel who had appeared on 29 April and 5 May) appeared for the applicant. In support of the application, counsel - (1) tendered into evidence an affidavit sworn by the applicant on 24 May 2016; (2) cross-examined the applicant's trial counsel, who had been called by the Crown; (3) put in evidence notes taken by the applicant's then solicitor referable to the conference of 5 April 2016; (4) called Associate Professor Brewer, (conveniently, 'Dr Brewer') a neuropsychologist who had interviewed the applicant on two occasions; (5) tendered two reports written by Dr Brewer; and (6) tendered a report of Dr Lester Walton, consultant psychiatrist, dated 31 March 2015.

Counsel for the Crown led evidence from trial counsel, and cross-examined the applicant and Dr Brewer. As will be seen, the order in which the witnesses gave oral evidence was of some significance. Dr Walton[3] did not give evidence viva voce.

● 20 July 2016: The judge heard a plea with respect to sentence.

● 22 July 2016: The judge published her reasons for rejecting the application.[4] She also published sentencing remarks,[5] and imposed sentence.

23 In her reasons, the judge set out a good deal of the procedural history of the matter, such as we have already recounted.

24 Then her Honour referred to the affidavit sworn by the applicant on 24 May:

Mr Jamieson swore an affidavit dated 24 May, which set out his initial version of events. I will not descend into much of the detail of that affidavit, as it differs so fundamentally from the account which Mr Jamieson ultimately gave in the witness box, after he had heard the evidence of his former barrister, [counsel]. It is sufficient for present purposes to note the following matters deposed to by Mr Jamieson in his affidavit:

(a) On Monday 4 April, his barristers told him in conference that his self-defence argument had little chance of success, and he should plead guilty to charge 1. This was completely different to the advice they had given on the previous Friday, that self-defence was arguable;

(b) As a result of the change in legal advice, he felt stressed and let down by his lawyers. He got little sleep on the Monday night, and when he woke up on the Tuesday morning he felt that all hope was lost;

(c) He felt under duress and confused by reason of the conflicting legal advice, and reluctantly said he would plead guilty. He said he did so without a proper understanding of the options he had; and

(d) His lawyers failed to have regard to his reduced cognitive functioning, as identified in the 26 March 2016 report of Associate Professor Brewer (which had been obtained for the purposes of the trial).[6]

25 Her Honour referred to the way in which the application had been put at the outset:

The essence of the application, as it was put in the initial defence written submissions, dated 7 June 2016, was that there would be a miscarriage of justice if the plea was not set aside, because:

(a) The plea was not entered voluntarily, as Mr Jamieson was pleading under duress, or when his free will was 'overborne or significantly compromised';

(b) Mr Jamieson did not truly understand the nature of the charge (ie the elements of murder) or freely agree to plead to the same;

(c) Mr Jamieson's impaired psychological state (including both cognitive deficits and depression) deprived him of:

(i) the ability to properly and fully comprehend the changed legal advice he was given; and

(ii) any meaningful ability to argue or challenge the new advice being given by his lawyers; and

(d) Mr Jamieson did not believe himself to be guilty at the time of the plea, and did not intend to accept guilt for the murder of Mr Holmes.[7]

26 Next, we should refer to the sequence of evidence on the hearing of the application. Her Honour noted that:

By consent, and for the convenience of the professional witnesses [trial counsel] and Associate Professor Brewer both gave their evidence before Mr Jamieson was cross-examined on his affidavit.[8]

27 In respect of the evidence of counsel, the judge expressed this conclusion:

[Counsel] gave a credible and consistent account of his actions and advice in relation to Mr Jamieson. He was well aware of the reports of both Brewer and Walton, and never experienced any difficulties in communicating with Mr Jamieson.[9]

28 Her Honour then noted the applicant's evidence under cross-examination:

When he gave oral evidence, after hearing [counsel's] evidence, Mr Jamieson agreed that there had been no change of legal advice. Instead, he gave the following new reasons for changing his plea:

(a) His lawyers made it sound like self-defence was a hopeless defence;

(b) He was not pressured by his lawyers, but he had no confidence in them;

(c) He felt there was a lack of support or back up from his lawyers; and

(d) He was unhappy with the media ruckus when he was brought to court in Bendigo.[10]

By the end of the oral evidence of both [counsel] and Mr Jamieson, there was no evidentiary basis for any concern that Mr Jamieson's decision to change his plea to charge 1 was in any way influenced by duress, pressure, confusion, or a lack of understanding about his situation.[11]

30 The judge did not ignore the evidence of Dr Brewer. This is what her Honour said about the content of his report dated 5 June 2016:

On 3 June 2016, Associate Professor Brewer further assessed Mr Jamieson. He prepared a supplementary report, dated 5 June 2016, to specifically address the issues relating to the change of plea. He concluded that during the period between 1 and 5 April, Mr Jamieson was anxious and depressed, and his further elevated emotional distress in the face of attending court for serious charges likely exacerbated the impact of his anxiety, to the extent that 'his emotional defences were not as reliable as he had characteristically become used to.' That elevated distress 'would reasonably have been expected to compound his underlying cognitive reasoning, particularly his executive (organisational) function, to a mild extent.' Therefore, he was likely acting in a concrete and somewhat more impulsive manner than usual by acquiescing to the new legal advice, and against his better judgment. Associate Professor Brewer's opinion was that Mr Jamieson's cognitive function had been deteriorating over many years.[12]

31 In respect of the viva voce evidence of Dr Brewer, the judge said this:

Because he gave evidence prior to Mr Jamieson, Associate Professor Brewer's evidence was given, and tested in cross-examination, on the assumption that the reason why Mr Jamieson changed his plea was because of a last-minute change of legal advice deposed to by Mr Jamieson. At no stage was Associate Professor Brewer asked what, if any, effect Mr Jamieson's various cognitive deficits might have had in the factual scenario which was ultimately put forward by Mr Jamieson. Given the nature of the deficits identified by Associate Professor Brewer, it is not self-evident that they would have compromised Mr Jamieson's ability to decide that it was in his interests to plead guilty to the charge for the reasons which Mr Jamieson gave in his oral evidence.

Associate Professor Brewer agreed that Mr Jamieson had the cognitive capacity to:

(a) Understand the decision to plead guilty;

(b) Understand the words of the charge;

(c) Understand what it would mean to plead guilty; and

(d) Know what he wanted to do.[13]

32 Despite the fact that Dr Walton had earlier opined that the applicant was 'thoroughly cognitively intact' and of normal intelligence, and Dr Brewer's oral evidence, the judge proceeded for the purposes of the application on the basis that the applicant's cognitive functions 'were impaired in the ways and to the extent identified' by Dr Brewer in his report of 5 June 2016.[14]

33 The conclusions ultimately expressed by her Honour were as follows:

A plea of guilty is a formal and conclusive admission of all elements of the charge. There is no evidence that Mr Jamieson did not understand the nature of the charge of murder and the elements of it. [Counsel's] evidence that he repeatedly discussed the elements of the crime with Mr Jamieson was unchallenged.

...

The test for whether a judge should grant an accused person leave to change their plea from guilty to not guilty is whether a miscarriage of justice would occur if leave was denied. The discretion is a wide one, albeit one to be exercised judicially.

For the reasons given, the evidence was insufficient to persuade me that Mr Jamieson's plea to charge 1 was tainted in any way which would impugn its integrity. On the contrary, I was satisfied that Mr Jamieson made a perfectly rational, unambiguous, free and voluntary plea of guilty, to a charge which he understood well and in respect of which there was overwhelming evidence against him. He was legally represented by competent and experienced lawyers, who gave consistent legal advice throughout. Such cognitive deficits as he may have been suffering would not have prevented him from coming to a rational decision that it was in his best interests to plead guilty before the trial started.[15]

34 Finally, we note that her Honour addressed the questions of need of satisfaction of an accused's guilt and an accused's subjective belief as to guilt. This is what she said:

The court does not need to be independently satisfied that an accused is in fact guilty before accepting the plea.[16] An accused may plead guilty for various reasons unrelated to their guilt, or their belief in their guilt, including the hope of obtaining a more lenient sentence, or to avoid worry, expense or embarrassment.[17]

Even if Mr Jamieson's subjective belief as to his guilt is relevant,[18] and even if he always believed he was acting in self-defence in relation to the murder of Mr Holmes, that would not have precluded him from making a rational decision that it was in his best interests to plead guilty to the charge.[19]

35 Counsel for the applicant advanced, in substance, three submissions.

36 First, when account was taken of the evidence of Dr Brewer, the judge made a wrong finding of fact with respect to the integrity of the applicant's plea of guilty on charge 1.

37 Second, the judge erred by failing to find that the applicant had a viable defence, and by failing to take into consideration whether there existed an 'issuable question' as to the applicant's guilt.

38 Third, the judge erred by failing to consider what was said to be the applicant's subjective belief in his innocence with respect to charge 1.

39 Senior Counsel for the Crown made submissions in response.

40 First, Dr Brewer's evidence did not support a conclusion that the integrity of the applicant's plea of guilty was put in doubt. That was the more so when the entirety of the evidence available to the judge was considered. The judge had been prepared to accept that the applicant may have been suffering from certain 'cognitive deficits', but her Honour had concluded that they had not put in question the integrity of the plea of guilty to charge 1.

41 Second, the existence of a theoretically viable defence is not, of itself, a basis for permitting a change of plea from guilty to not guilty. But if that be not so, the judge in any event did have regard to the viability of the suggested defence to charge 1. Her Honour's conclusion, adverse to the applicant, was clearly open. Moreover, it could not be said that the applicant had been denied procedural fairness with respect to that conclusion, because the viability of the suggested defence of self-defence had been debated on the change of plea application.

42 Third, the most that can be said, with respect to an accused person's subjective belief of innocence, is that an exercise of discretion which has regard to such a belief will not necessarily be vitiated on that account. But in any event, in this instance, the judge was prepared to factor into an account, in the applicant's favour, his having a subjective belief that he was not guilty.

43 Fourth, in summary, none of the three alleged errors was present; and there was no contention that the matter fell within the residual category described in House v The King.[20]

(1) A court's decision on an application to change a plea from guilty to not guilty is a discretionary decision which calls into play, on an appeal, the very well-known principles described in House v The King.[21]

(2) By a plea of guilty on arraignment in open court, an accused makes admission of all of the legal ingredients of the offence with which he or she is charged. It has been described as 'the most cogent admission of guilt that can be made'.[22] It is thus understandable that 'a claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution'.[23]

(3) A court will not permit a change of plea unless the applicant satisfies the court that not to permit a change of plea would occasion a miscarriage of justice. In that enquiry, the integrity (or otherwise) of the plea is the key matter for consideration. It is central to the integrity of a plea that it be made freely, voluntarily, and with an appreciation of the elements of the charge to which the plea is being entered.

(4) The burden of demonstrating that a miscarriage of justice would occur if the applicant was not permitted to change his or her plea of guilty rests on the applicant.

(5) The circumstances in which a miscarriage of justice may be found to arise are not closed.

(6) The existence of a so-called 'issuable question of guilt' does not of itself impugn the integrity of a plea of guilty or mandate a conclusion that a miscarriage of justice would occur if a change of plea was not permitted. Of this, more later. For the moment, we simply observe that - (1) in almost every case where an accused pleads guilty, some possible issue for trial - weaker or stronger - will have been abandoned; and (2) the conception of an issuable question of guilt is different from a case in which there is simply no evidence which would sustain a conviction, as appears from the depositions and any other material relied upon by the prosecution. In the latter case, there would certainly be a miscarriage of justice if a change of plea was not permitted.

(7) On an application for change of plea before conviction, an accused person's subjective belief in innocence of a charge may bear upon the question whether the plea was a true admission of guilt; and such belief cannot be said to be irrelevant to a judge's exercise of discretion in certain circumstances. Of this matter, also, more later.

46 In our opinion, the key question is whether the applicant could satisfy us that the judge mistook the facts (the language of House v The King) by concluding, as her Honour did, that any cognitive deficits from which the applicant suffered at the relevant time did not impugn the integrity of his plea of guilty. The applicant's core submission focussed upon the particular finding.

47 Upon what we have described as the key question, applicant's counsel relied much upon the opinion of Dr Brewer. He rightly accepted, however, that the question whether the guilty plea could be successfully impugned involved consideration of a body of evidence of which Dr Brewer's evidence was only a part. There were the applicant's affidavit, and his answers in cross-examination. There was the evidence of his trial counsel of events preceding and at the time of the change of plea. There were the conference notes to which we have earlier referred. In short, the question to be determined by the judge involved consideration of the entirety of the relevant evidence, and not simply Dr Brewer's evidence.

48 In the end, the applicant's counsel stated that this was a case in which the weight of evidence was opposed to the judge's conclusions that:

[T]he evidence was insufficient to persuade me that Mr Jamieson's plea to charge 1 was tainted in any way which would impugn its integrity. On the contrary, I was satisfied that Mr Jamieson made a perfectly rational, unambiguous, free and voluntary plea of guilty, to a charge which he understood well and in respect of which there was overwhelming evidence against him. He was legally represented by competent and experienced lawyers, who gave consistent legal advice throughout. Such cognitive deficits as he may have been suffering would not have prevented him from coming to a rational decision that it was in his best interests to plead guilty before the trial started.[24]

49 It is unnecessary to consider whether it could be enough for the applicant to show, in the House v The King context, that the judge's conclusion with respect to the applicant's cognitive deficits was against the weight of the evidence;[25] because we are unhesitatingly of the opinion, considering all the relevant evidence, that the judge's conclusion was correct. There are a number of threads to this conclusion.

50 First, the applicant's initial account as to why he changed his plea to guilty - set out in his affidavit sworn 24 May 2016 - highlighted an alleged great change in legal advice hitherto provided, with resulting stress, a feeling of duress and confusion, and a want of understanding of his options when he told his advisers, reluctantly, that he would plead guilty. In that affidavit, also, he relied upon Dr Brewer's report of 26 March 2016, current at the time of the guilty plea. But this version of events effectively dissolved when the applicant was cross-examined. By that time, the applicant had heard the evidence of his trial counsel, evidence which the judge characterised in her reasons as credible and consistent.

51 Counsel, as her Honour found, was well aware of the reports of Dr Brewer and of the psychiatrist, Dr Walton. He had never experienced any difficulties in communicating with the applicant. He categorically rejected the suggestion that there had been any change in the legal advice which had been given with respect to charge 1.[26] It had always been that:

There was a runnable and viable defence to be run in respect of charge 1. Not necessarily the strongest defence, it had problems with it but, nonetheless, it was a runnable defence. That advice remained the same at all times.

52 As the judge noted, the applicant gave viva voce evidence after his former counsel had done so; and he agreed that there had been no change in legal advice - this subverting, in substance, the state of mind to which he had deposed when he had 'reluctantly' agreed to plead guilty to charge 1.

53 The judge stated that, viva voce, the applicant gave new reasons for his change of plea. We have set them out at [28] above.

54 We should repeat the conclusion which the judge then expressed:

By the end of the oral evidence of both [counsel] and Mr Jamieson, there was no evidentiary basis for any concern that Mr Jamieson's decision to change his plea to charge 1 was in any way influenced by duress, pressure, confusion, or a lack of understanding about his situation.[27]

55 There was no challenge in this Court to the judge's findings with respect to the evidence of trial counsel, or with her Honour's description of the new explanation advanced by the applicant in cross-examination for his change of plea.[28] Applicant's counsel, indeed, conceded in submissions that his client's 'changed advice' assertion was not maintainable; and he took as being accurate the substance of the reasons orally advanced by his client[29] as to why he had changed his plea on charge 1 to guilty.

56 Second, the conference notes taken by the applicant's then solicitor on the morning of 5 April 2014 make it clear that the applicant began the conference by telling his lawyers that he had decided to plead guilty to charge 1. They also make clear that, in the course of the conference, the applicant was told by his counsel that he had an arguable defence but the prospects were not good. He was also expressly advised that if he pleaded guilty he would lose the opportunity to argue that he acted in self-defence. After all these matters were clarified, the applicant confirmed his instructions.

57 The solicitor's notes of the conference end with the following summary:

Client did not believe any point in running the trial, thought it wouldn't be fair trial, [counsel] advised otherwise, offered more time to think about it, client refused. Explained to client that a [plea of guilty] cannot proceed on any argument of self-defence, will be a plea of guilty to murderous intent. Client concerned about state of his health, his family, no practical advantage to running the trial.

58 The applicant pleaded guilty on the morning of what might be called 'D day' - that is, the day when the jury was to be empanelled and the trial was to commence. The applicant had tied his colours to a new story - that Mr Holmes had precipitated a killing in self-defence by stabbing the applicant with a syringe (as well as wresting the applicant's knife from him and attempting to injure the applicant with the knife). If that was to be the gist of a defence of self-defence, then the applicant would have had to give evidence. He would then, of course, have had to face cross-examination - both as to what would have been categorised as a recent concoction, and also upon his original account of the confrontation with Mr Holmes. Neither line of cross-examination could have been an appealing prospect for the applicant. But if the applicant had abandoned his account involving the syringe, his self-defence argument would have depended almost entirely upon what he told the police in the aftermath of the killings. This could not have inspired any confidence that the Crown would not exclude the reasonable possibility of a killing in self-defence. In all, a rational human being confronted with an imminent trial - and no evidence suggested that the applicant was incapable of rational thought - could not but have appreciated the force of the lawyers' advice that the prospect of a defence of self-defence succeeding was not good. In that context, the applicant's change of plea, announced to his lawyers, was readily explicable. It is equally understandable that, at the same time, the applicant would continue to assert to his lawyers that he had killed Mr Holmes in self-defence; that he wanted to have self-defence raised on the plea (which he was told would not be possible); and that he would write a book (telling the true story). It is hardly likely, having asserted a killing in self-defence for nearly a year and a half, that the applicant would want to admit to his lawyers that his several versions had been false.

59 Third, the conference notes show that, in addition to considering the advice which he had been given about the poor prospects of his intended defence succeeding, the applicant adverted to other matters when deciding upon his intended change of plea - concern that he would not get a fair trial,[30] a possible adverse effect of the rigours of the trial upon his health, and concern for the impact of the trial upon his family. Each of them was a rational concern. The first of them was specifically addressed by counsel, who gave advice apt to dispel the applicant's concern. Further, and properly, as the notes show, the lawyers asked the applicant if he wanted more time to consider his intended change of plea. The applicant did not take up this suggestion.

60 Fourth, we agree with the gist of the judge's conclusions in respect of Dr Brewer's evidence. Her Honour was prepared to act upon the basis that the applicant did suffer, at the relevant time, from the cognitive deficits described by Dr Brewer. But the question was whether those deficits impugned the integrity of the plea of guilty. Dr Brewer's report dated 5 June 2016 was unequivocally founded upon the applicant's account that - (1) on 4 April he had been given greatly different advice to that which he had hitherto been given as to the prospects of his intended defence succeeding; (2) he got hardly any sleep on the night of 4 April; (3) on the morning of 5 April he felt, when he awoke, that all hope was lost; and (4) very reluctantly, and against the beliefs he had about the way he wanted to conduct his case, he decided to plead guilty to all charges.[31] There was also the applicant's account that he - (5) believed on the day of pleading guilty to charge 1 that he had been let down by his lawyers; (6) felt under duress and confused by reason of conflicting advice; (7) found it difficult to concentrate and 'take in' the changed advice; (8) struggled to process the new advice; and (9) considered he was in 'a state of panic'.

61 It was in the context thus set that Dr Brewer opined in his report of 5 June 2016 that -

Therefore, over the time period 1-5th April 2016, and on balance of probabilities,[32] it is this clinician's opinion that Mr Jamieson was anxious and depressed, and that his further elevated emotional distress in the face of attending court for serious charges likely exacerbated the impact of that same anxious state to the extent that his emotional defences were not as reliable as he had characteristically become used to. Moreover, the impact of that same elevated distress would reasonably have been expected to compound his underlying cognitive reasoning, particularly his executive (organisational) function, to a mild extent. Therefore, and as he reports, he was likely acting in a concrete and somewhat more impulsive manner than usual by acquiescing to legal advice, and then against his better judgment. From the available evidence, he had changed to his Plea of Guilty for all three deaths contrary to the position that he had originally maintained prior to that time period and currently where he had been likely more able to consider the longer-term impact of his decision (i.e. he maintains now as he did at the first assessment that his actions towards Mr Holmes were self-defence). It should be noted that despite the constellation of emotional and cognitive compromise outlined above that Mr Jamieson was nevertheless not so impaired that his attention to (and organised storage and retrieval of) the details surrounding the discussions over the period April 1-5th 2016 have been so compromised as to reflect unreliability, at least compared to the evidence available to this clinician.[33]

62 The factual scenario requiring the doctor's opinion was, however, much different. His opinion lacked relevance unless it could be applied to the true circumstances. But Dr Brewer gave evidence before the applicant was called; and applicant's counsel made no attempt to recall him after the applicant had given evidence.

63 Both below and in this Court, applicant's counsel contended that Dr Brewer had sufficiently been taken to an alternative set of facts, and had expressed an opinion in relation thereto, which made that opinion relevant. Having considered the relevant transcript, we do not agree.

64 Applicant's counsel relied upon this exchange, where Dr Brewer was being cross-examined about the effect of the deficits which he had described:

And those sorts of deficits may not necessarily impinge on that at all, may they?---They may not, but in this case I concluded that it was not that likely that they didn't impinge on him.

65 Putting to one side the somewhat tentative nature of this answer, Dr Brewer's statement that he 'concluded' a certain thing makes it clear that he was referring to the circumstances as he had understood them to be.

66 No other passage in Dr Brewer's evidence referred to by counsel advanced the applicant's case any further.

67 We should mention also that, insofar as Dr Brewer was presented with an alternative series of relevant facts, his opinion was not helpful to the applicant. Thus:

HER HONOUR: But the point that's being put to you, is that that's based entirely on accepting the truth of what he says?---Yes, that's correct, Your Honour.

COUNSEL: So, Dr Brewer, if what actually happened was he told his lawyers out of the blue on that morning, 'I want to plead guilty to this charge'?---Yes.

Then that's not a matter of him acquiescing to legal advice at all, is it?---No.

That's not a matter of his potentially having acted in a more concrete and somewhat impulsive manner, if what he actually did was exercising his free choice to make decision?---That's correct.

And his deficits, such as they may be, would have no part at all to play in that, would they, if that's in reality what happened?---If indeed that's what happened.

Thank you. And it's difficult for you because you haven't been in court when the evidence has been given, but just to precis it very briefly, the evidence of his lawyer is that at no time did his legal advice to his client ever change?

---Yes.

That between the end of, or the last time they saw each other on the Monday 4 April until the time they saw each other again on the morning of Tuesday 5 April - - -?---Yes.

- - - the applicant changed his mind about what he wanted to plead to that particular charge and instructed his lawyers that he wanted to plead guilty. Now, that's completely different from what you have been told, isn't it?

---From Mr Jamieson, yes.

68 Finally, Dr Brewer did agree with the matters set out in [31] of the judge's reasons[34] which directly support the conclusion that the applicant understood what he was doing when he pleaded guilty.

69 We note that this conclusion was consistent with the opinion of Dr Walton, consultant psychiatrist, who saw the applicant on 30 March 2015 and formed the opinion not only that he was a man of normal intelligence who was 'thoroughly cognitively intact' but also that there were no issues in relation to his being fit to be tried. This was the only specialist psychiatric evidence before the Court.

70 We turn to the applicant's submission that the judge erred by - (1) failing to find that the applicant had a viable defence; and (2), failing to consider whether there existed an issuable question as to the applicant's guilt; and to the corollary that, if her Honour found that the applicant did not have a viable defence, there was a breach of the rules of natural justice because he was not put on notice that such a finding might be made.

71 As we understand it, the applicant contended that the judge was bound to consider whether there was an issuable question as to his guilt (failure to do so being a failure to take account of a relevant matter), and to have determined that there was such a question (failure to so determine being a mistake as to the facts). It was contended that the finding which should have been made either: (1) itself mandated a ruling that a change of plea be permitted; or else, (2) was relevant to a determination of the integrity of the plea.

72 The corollary to which we referred at [70] can be disposed of quickly. The veracity of the applicant's version of events which was current immediately before trial was put in issue on the change of plea hearing. The applicant could not have been taken by surprise that the judge addressed it.

73 Orally, applicant's counsel submitted that - (1) on the change of plea hearing, the judge had deflected attention away from consideration of the viability of the proposed defence; and (2) the viability of the defence, in any event, could only be determined at trial.

74 The first submission is simply incorrect. In the passage to which applicant's counsel referred, counsel for the Crown having referred to some of the circumstances of the matter, there was this exchange:

HER HONOUR: This is where he got to in the end. I'm not sure why you're taking me to what I might call an objective assessment of whether it was a viable defence, because I'm not really sure that's the test for me, is it?

COUNSEL: I was really dealing with the issue of the subjective views of the applicant about his situation. It's being asserted on his behalf that even if you cut away the evidence of Dr Brewer and even if there aren't those psychological issues, and in my submission there aren't, that if there is a doubt about whether the applicant truly believed himself to be guilty, then that might be a problem. As you understand the prosecution's submissions, it would not be a problem. But what I'm really canvassing here is, is there really any prospect that is the case? If you look at all of the material, if you look at exactly how this killing occurred, and everything that the applicant then did in response to that killing, everything he said to the police, and his eventual, the advice he received from his lawyers and his eventual decision to plead guilty to that charge, could there be the slightest doubt that he was thereby acknowledging his guilt of that crime?

75 So it was not a question of the judge deflecting counsel's submission from where it was headed, but rather of counsel explaining to what issue it related.

76 The applicant's submission that the viability of the defence could only be determined at trial was puzzling. It was apparently inconsistent with the earlier submission that the judge was bound to find that the applicant had a viable defence. That aside, it was literally correct in the sense that, until a trial has been had, the viability of even the most improbable defence cannot be decisively determined. This fact demonstrates the limits of any enquiry that a judge might make, at or before trial, on a change of plea application. But this does not mean that in certain cases a judge might not have to assess whether the available circumstances suggest that there is a real question (or some like formulation) as to an accused's guilt.

77 As we have observed, applicant's counsel referred in written submissions to a 'viable defence' and to 'an issuable question as to the applicant's guilt'. In oral argument, he treated the two as synonymous.

78 The conception of 'an issuable question of guilt' appears to trace back to the judgment of Sholl J in R v Murphy.[35] That was a case in which a prisoner sought to appeal against conviction after a plea of guilty. There had been no application before the primary judge to retract that plea. This is what Sholl J said:

Mr Neesham, in his admirable address on her behalf, put it that it would be sufficient if the question of her guilt or innocence was an issuable matter. I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial.[36]

79 What his Honour was saying, it appears to us, is that if there was reason to doubt the integrity of the plea, and if there existed of an issuable question of guilt, there would be sufficient reason to order a new trial.

80 In R v Davies,[37] another case in which it was sought to controvert a guilty plea for the first time on appeal, Badgery-Parker J (Wood and Mathews JJ agreeing) gave life to the language of Sholl J, saying:

If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J, 'an issuable question of guilt' - to put it more simply, if there is a real question to be tried.[38]

81 In Rotner v The Queen,[39] speaking about what is meant by 'an issuable question about the guilt of the applicant', Simpson J said:

There are, in fact, two components to the test so stated - first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an 'issuable' question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that created a doubt about his guilt...[40]

82 There are cases in which it has been said, in effect, that identification of circumstances which demonstrate that there is a 'real question' about guilt bear upon whether a plea of guilty was or was not attributable to true 'consciousness of guilt'.[41]

83 In Weston (a Pseudonym) v The Queen,[42] Redlich JA summarised his understanding of relevant authorities this way:

Thus it is necessary for an applicant seeking to withdraw a plea of guilty to advert to circumstances that created a doubt about his or her guilt, as well as circumstances that raise a doubt about his or her own perception, at the time the plea was entered, of his or her guilt. Put another way, what is important is an elaboration of the circumstances that might justify a conclusion that a plea of guilty was not attributable to a genuine consciousness of guilt.[43]

To impugn the integrity of the plea, whether before or after conviction, the applicant must show an 'issuable question of guilt' and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.[44]

84 We accept that in some cases it will be a relevant consideration, although not of itself sufficient to impugn a plea of guilty, that an accused seeking leave to change a guilty plea shows (the onus lying upon him or her) that there is, in language which the courts have used -

85 As we have noted, a judge, before evidence is adduced at trial, may be limited in assessing the worth of matters relied upon by an applicant.

86 In this case, the applicant's submission that the judge failed to consider whether there was 'an issuable question' as to guilt cannot be accepted. Having stated that '(t)he court does not need to be independently satisfied that an accused is in fact guilty before accepting the plea',[45] her Honour then footnoted:

Were it necessary to do so, I would have had no trouble being satisfied beyond reasonable doubt of Mr Jamieson's guilt of all three charges, on the evidence and for the reasons set out in my sentencing remarks: DPP v Jamieson [2016] VSC 407.[46]

As to which, see DPP v Jamieson [2016] VSC 407 [27]-[36].

87 We must say something about the findings mentioned in the footnote cited in the previous paragraph. The plea hearing took place shortly after the application for change of plea had been refused, and when the ambit of the evidence was settled. It was submitted for the applicant that such findings were not a guide to the viability of the proposed defence, had the assessment of viability been made before a contested trial. This was a distinct variant of the submission noted at [73(2)] above. It was true as far as it went. But any assessment of what we have called the worth of matters relied upon by an accused must be undertaken, so far as is necessary and so far as it can be, upon the materials available when application is made for a change of plea. In the present case, the state of the relevant materials at that time and at the time when the plea hearing was held was the same. The judge's assessment of the viability of the proposed defence of self-defence, upon those materials, was sound.

88 In the event, there was nothing in the 'viable defence' contention which could cast doubt on the integrity of the plea, and - applying the Murphy approach of Sholl J - there was no circumstance in evidence which the applicant might call in aid if the integrity of his guilty plea had been in doubt.

89 We turn to the third argument advanced by the applicant, noted by us at [38] above. It was contended that - (1) the judge was required to consider whether the applicant had a subjective belief in his innocence on charge 1 as part of the enquiry whether there would be a miscarriage of justice if he was not permitted to change his plea; (2) her Honour had determined that she was not required to make such a finding; and (3) her Honour had not done so.

90 Her Honour referred to the question of the applicant's subjective belief this way:

Even if Mr Jamieson's subjective belief as to his guilt is relevant,[47] and even if he always believed he was acting in self-defence in relation to the murder of Mr Holmes, that would not have precluded him from making a rational decision that it was in his best interests to plead guilty to the charge.[48]

91 It is, in our opinion, clear from that passage in her Honour's reasons that her Honour did not determine that she was not required to consider the applicant's subjective belief in innocence. There is nothing to the complaint noted at [89(2)].

92 Next, it is apparent from the passage in her reasons cited at [90] that her Honour was prepared to assume in the applicant's favour that it was possible that he had a subjective belief in his innocence on charge 1. In the circumstances which we have described in some detail, that was a generous assumption to make in the applicant's favour. There is nothing of any substance to the complaint noted at [89(3)].

93 We turn to the complaint noted at [89(1)] that the judge was required to consider whether the applicant had a subjective belief in his innocence at the time that he pleaded guilty. The question for the judge was whether the applicant had established that his plea of guilty was tainted. Her Honour concluded, in that connection, that the plea was 'rational, unambiguous, free and voluntary'.[49] No circumstance having been established that materially affected the integrity of the plea,[50] the applicant's guilty plea constituted a full and complete admission of guilt.

94 In reaching the conclusion just mentioned, we think it is clear that the judge did bring to account - whether or not she was required to do so - the assumption which she was prepared to make about the applicant's subjective belief in his innocence on charge 1. She was not prepared to conclude that it was determinative in the applicant's favour. To the contrary, her Honour considered that it would not have precluded him making 'a rational decision that it was in his best interest to plead guilty...', a matter touching upon the integrity of the plea.

95 In the event, there is no substance to the complaint any aspect of the complaint noted at [89]. But we will say something about several authorities to which applicant's counsel referred us.

96 Reliance was placed upon observations of this Court in Kumar v The Queen.[51] That was a case in which the Court refused an extension of time to appeal against conviction, the ground relied upon being that the applicant ought to have been permitted to change a guilty plea. The same point had been raised and rejected on an interlocutory appeal. The Court disposed of the matter by adopting the correctness of the reasons given on the interlocutory appeal. But in deference to the submissions of counsel which raised the question whether an admission might not be a true admission if it resulted from a desire to obtain a 'technical advantage' - there, a belief that by pleading guilty a substantial discount on sentence would be obtained - the Court stated that the position appeared to be, inter alia, that:

A true admission of guilt of an offence means an admission freely made of an offence of which the accused is truly guilty.[52]

If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty.[53]

Consequently, before a judge will entertain an application to withdraw a freely made admission of guilt on the basis that it was motivated by hope or expectation of technical advantage, the judge will need to be persuaded by evidence that the accused did not intend by the plea to accept guilt for an offence of which he believed himself to be guilty.[54]

98 We do not accept that those passages mean that an accused's subjective belief in innocence was determinative that the person, by his or her plea of guilty, had not intended to accept guilt for the offence. In Weston, Redlich JA said that:

[T]he impugned passages [in Kumar] do not dictate a particular conclusion as to when a miscarriage of justice would arise and so require the discretion to be exercised in any particular way where the applicant relies upon an absence of a belief in guilt at the time of the plea.[55]

Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant establish[es] that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.[56]

100 Whelan and Kaye JJA expressed the matter in more forthright language:

In those circumstances it is not necessary to consider the question, raised by the applicant, and discussed by Redlich JA at [61]-[115] above, whether it was necessary for the judge to determine whether the applicant believed himself to be guilty of the offences to which he pleaded. It is, however, appropriate to observe that we have reservations as to the literal correctness of the propositions stated by this Court, in summary form, in [16(a)], [16(d)] and [17] of Kumar No 2. Insofar as those paragraphs might be read as suggesting that a judge must consider whether an applicant is 'truly guilty' and whether he 'believed' himself to be guilty, that would seem to be inconsistent with a number of the authorities referred to by Redlich JA including Sagiv, Cincotta, Gadaloff, Brooks (adopting Pugh), Stewart, Wong, Woods, Holden and Rotner, and with the High Court's dicta in Meissner (although not directly applicable to these applications), even if what was said is confined to applications before conviction. Those propositions, on analysis, might also be found to constitute an unwarranted addition to, or qualification upon, the applicable test which is simply whether a miscarriage of justice would occur if the guilty plea was not permitted to be withdrawn.[57]

101 In our view, neither Kumar nor Weston is to be understood, in respect of a change of plea application made before conviction, as going beyond this: that evidence of an accused's subjective belief in innocence is capable of bearing upon the question whether a plea of guilty was tainted as not being a true admission; and, where the plea is shown to have been made with a view of obtaining a technical advantage, this may be relevant to a judge's exercise of discretion on a change of plea application. That approach accords with logic. Of course, consciousness of guilt in the present connection involves a broader enquiry than as to subjective belief in innocence. If it was otherwise, a person pleading guilty though continuing to protest belief in innocence would inevitably succeed on a change of plea application made before conviction; and, consistently with principle, that is not what happens.

102 We refuse the applicant leave to appeal against conviction.

[1] An extension of time to bring the application having earlier been granted.

[2] The applicant had given a history of such an incident in his interview with Associate Professor Brewer, a neuropsychologist, on 15 March 2016 - that is, about a fortnight before the defence response was filed. He had not given that account to his wife or to friends with whom he spoke shortly after the killings. Nor had he mentioned it in any of his interviews with the police. No syringe was found in the vicinity of Mr Holmes body - although, of course, it might be said that the police had no reason to look for such a thing.

[3] He had been engaged by solicitors who had acted for the applicant at an earlier time.

[4] DPP v Jamieson (Ruling) [2016] VSC 406 ('Reasons').

[5] DPP v Jamieson [2016] VSC 407.

[12] Ibid [22] (emphasis in original).

[16] Were it necessary to do so, I would have had no trouble being satisfied beyond reasonable doubt of Mr Jamieson's guilt of all three charges, on the evidence and for the reasons set out in my sentencing remarks: DPP v Jamieson [2016] VSC 407.

[17] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501.

[18] As to which there is a dispute between members of the Court of Appeal; see Kumar v The Queen [2014] VSCA 102 and Weston v The Queen (2015) 48 VR 413.

[19] Reasons [33]-[34] (citations in original).

[20] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

[22] Weston (a Pseudonym) v The Queen (2015) 48 VR 413, 429 [70] (Redlich JA) quoting R v Sagiv (1986) 22 A Crim R 73, 80-1 (Lee J).

[23] Weston (a Pseudonym) v The Queen (2015) 48 VR 413, 443-4 [109].

[25] Compare the language of Pullin JA in Maguire v Kearns [2010] WASCA 13 [50]-[51] with the language of McColl JA in Brown Brothers Waste Contractors Pty Ltd v Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717, 760 [199], [202].

[26] In cross-examination by applicant's counsel, he was pressed with the assertion, made in the applicant's affidavit, of there having been a big change in the advice given between 1 and 4 April 2016. The witness rejected that assertion - rightly so in light of the applicant later abandoning it.

[28] Her Honour did not mention what the applicant said were his 'unfair trial' concerns, (as to which see [59] in these reasons). But those concerns were tied in with the 'media ruckus', a matter to which her Honour did refer.

[29] Which did not exactly mirror the evidence given by trial counsel.

[30] 'Only going to be a kangaroo court'; 'copped abuse coming into court'; 'lies in the media'.

[31] Paraphrasing paragraph 16 of the applicant's affidavit sworn 24 May 2016.

[32] Language which we had hoped was no longer used in the reports of medical and like professionals.

[34] Set out at [31] above.

[35] [1965] VicRp 26; [1965] VR 187, 190.

[37] (1993) 19 MVR 481.

[39] [2011] NSWCCA 207.

[40] Ibid [49] (McClellan CJ at CL and Fullerton J agreeing; emphasis added).

[41] R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533; R v Mokbel (Change of Pleas) [2012] VSC 86; (2012) 35 VR 156.

[42] (2015) 48 VR 413.

[44] Ibid 444 [109(5)] (citation in original). See, eg, the circumstances identified in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472, 447-8 [32].

[45] Reasons [33]. What her Honour said was correct but, unlike the sentencing remarks which she incorporated, did not squarely meet the 'issuable question' issue.

[47] As to which there is a dispute between members of the Court of Appeal; see Kumar v The Queen [2014] VSCA 102 and Weston (a Pseudonym) v The Queen (2015) 48 VR 413.

[48] Reasons [34] (citation in original).

[50] See Weston (a Pseudonym) v The Queen (2015) 48 VR 413, 445-6 [109(13)], and the cases there cited.

[51] [2014] VSCA 102.

[55] (2015) 48 VR 413, 443 [107].